Case Law Analysis: High Court Decision Upholds No Order as to Costs Principle in Hague Convention Proceedings

Citation: [2023] EWHC 3171 (Fam)
Judgment on

Introduction

The case of D v E before the High Court of Justice in the Family Division ([2023] EWHC 3171 (Fam)) provides a multifaceted look at the application of legal principles in cost orders within the context of the Hague Convention proceedings. The case involves the Applicant mother, identified as D, seeking a costs order against the Respondent father, E, following her successful application for the return of their child, X, to Country B under the Hague Convention.

Key Facts

The key facts pertinent to the legal analysis, as detailed in the provided case law excerpt, are:

  • The marriage between the parents of the child in question, the subsequent birth of X, the family’s initial move to Country B, and the eventual return of the father alone.
  • The initiation of divorce proceedings in Country B by the father.
  • The mother being served with divorce proceedings in Country B just prior to her and the child’s arrival in the UK.
  • The father’s defense of the mother’s Hague Convention application on the grounds of the child’s habitual residence and consent/acquiescence.
  • The prior decision of the court rejecting the father’s stance and ordering the return of the child to Country B.

The legal principles that played a pivotal role in the decision of Mrs Justice Theis DBE are as follows:

Children Cases and Cost Orders

The general rule in children cases, as stated in Sutton London Borough Council v Davis (No 2) [1994], is that there is no order as to costs. This presumption can, however, be overcome when considering factors outlined in Part 44 of the Civil Procedure Rules 1998 (CPR).

Rule 28.1 Family Procedure Rules 2010 (FPR 2010) and CPR 1998

The analysis of costs in family proceedings pivots on Rule 28.1 of the FPR 2010 and the provisions of CPR 1998. Part 44.2 (4) to (8) of the CPR emphasise taking into account all circumstances, including conduct of the parties and any settlement offers when deciding on costs orders.

Conduct and Litigation Stance

When ascertaining whether a party has pursued a litigation stance that is unreasonable or their conduct has been reprehensible, the court considers the manner of litigation under Re T (Care Proceedings: Costs) [2012]. In the case of D v E, the court evaluated the father’s private acknowledgment of the child’s habitual residence in Country B, the assurance given to the mother regarding the child’s return, and the signing of documents corroborating this arrangement.

Proportionality and Reasonableness of Costs

Contemplation of whether costs were proportionate and reasonably incurred is integral, as indicated by SB v MB (Costs) EWHC 3721 (Fam). It considers the necessity of interim applications and correspondence leading to the substantive proceedings, and whether such costs should impact the costs order.

Outcomes

Upon considering the father’s actions and his defense against the mother’s application, Mrs Justice Theis ultimately decided that the father’s litigation stance was not so unreasonable as to warrant a deviation from the general no costs order rule applied in children cases. Notably, the costs incurred with the mother’s first solicitor were deemed not entirely relevant to the issues in this application, as they encompassed costs pertaining to unissued proceedings and possible alternative applications.

Conclusion

In D v E, a detailed analysis was conducted by the court to determine whether the conduct and litigation stance of the father were unreasonable enough to justify a costs order against him. Despite the mother’s successful application for the return of the child under the Hague Convention and the judge’s recognition of the father’s unhelpful stance in delaying certainty for the child, the “no order as to costs” principle, consistent with family law proceedings, was upheld. This reaffirms the notion that even in the face of successful litigation, the reasonableness of parties’ conduct and stance during the process are key determinants in the decision to award costs.

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